Ontario Building Officials Association A Guideline to Apply for Set Fines Under Part One of the Provincial Offences Act October 5, 2010 - Training Session Collingwood Ontario This presentation does not constitute legal advice, and was created with the assistance of information provided from the Attorney General s office. Ted Allen Supervising Prosecutor Region of York
Set Fine Applications Reference to bylaw set fine applications in this presentation have been included so as to assist anyone who may be applying for set fines regarding bylaw offences
RELEVANT LEGISLATION The need for Set fine Orders The definition for set fine is found within section 1(1) of the Provincial Offences Act The term is defined as follows: set fine means the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II
RELEVANT LEGISLATION The meaning of offence is also found within section 1(1) of the Provincial Offences Act: offence means an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature. A municipal bylaw can create an offence for the purpose of section 1(1) of the Provincial Offences Act
RELEVANT LEGISLATION Section 6 of the R.R.O, 1990, Reg. 200 [as amended O.Reg 505/93; O.Reg. 498/94; 567/00] states further: For the purpose of proceedings under Part I or Part II of the Act, the amount of fine set by the court for an offence is such amount as may be set by the Chief Judge of the Ontario court (Provincial Division).
RELEVANT LEGISLATION The authority for a Regional Senior Justice to impose a set fine (rather than the Chief Justice, as suggested by a plain wording interpretation of s. 1 of the Provincial Offences Act), derives from section 36(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, which states as follows: 36(2) A regional senior judge of the Ontario Court of Justice shall, subject to the authority of the Chief Justice of the Ontario Court of Justice, exercise the powers and perform the duties of the Chief Justice of the Ontario Court of Justice in his or her region
Part I Provincial Offences Act offences are, in essence anything, which is not a Part II offence. Section 14 of the Provincial Offences Act defines what offences fall within Part II as follows: Section 14. In this Part, parking infraction means any unlawful parking, standing or stopping of a vehicle that constitutes an offence. 1992, c. 20, s. 1 (1)
PENALTIES FOR SET FINES Parts I and II of the Provincial Offences Act govern certificate of offence proceedings. This mode of proceedings is less serious than Part III proceedings, commenced by the laying of an Information. Penalties under Part I proceedings are regulated by section 12 of the Provincial Offences Act.
PENALTIES FOR SET FINES 12(1) Where the penalty prescribed for an offence includes a fine of more than $500 or imprisonment and a proceeding is commenced under this Part, the provision for fine or imprisonment does not apply and in lieu thereof the offence is punishable by a fine of not more than the maximum fine prescribed for the offence or $500, whichever is the lesser
PENALTIES FOR SET FINES Subsection 12(1) of the Act is amended by striking our $500.00 wherever it appears and substituting in each case $1000.00. (Bill 212)
Victim Fine Surcharge/Costs Regulation 161/00 allows for a Victim Fine Surcharge (VFS) VFS is to be added to the total payable (not the set fine amount).
Provincial Offences Act ONTARIO REGULATION 161/00 VICTIM FINE SURCHARGES TABLE Column 1 Column 2 Fine Range Surcharge $ $ 0-50 10 51-75 15 76-100 20 101-150 25 151-200 35 201-250 50 251-300 60 301-350 75 351-400 85 401-450 95 451-500 110 501-1000 125 Over 1000 25% of actual fine
Victim Fine Surcharge/Costs Costs are added to the total payable (not the set fine amount). Costs are found in section 60(1) and Regulation 945 of the POA. For BCA matters, costs are $5.00 Costs are added by the court, not the inspector/officer
Victim Fine Surcharge/Costs Your department should have a chart for the enforcement officer/building inspector to refer to, in order to ensure the VFS is recorded on the certificate of offence correctly The chart should spell out the set fine and total payable
Part One Chart Example Short Form Wording Building without a permit Set Fine Total Payable $350:00 $425:00 ($75 VFS added to set fine) $5 Costs are added to the total by the court
Authority to Enact There must be legislative authority for a municipality to enact offences with respect to certain specified conduct. Most often, the pre-amble to a by-law makes reference to the authority to enact the bylaw. Where this is not done within the bylaw, reference to the authority should be made in the covering letter to the Attorney General
Building Code Act Municipalities usually request set fines for their bylaws Reference to the BCA should be made in the covering letter to the Attorney General when requesting set fines under the BCA
Where to Send the Application Kerry Lee Thompson Crown Counsel Ministry of the Attorney General Crown Law Office-Criminal 720 Bay Street, 10th Floor Toronto, Ontario M5G 2K1
What to Include in the Application Package Covering Letter Indicate how many applications are included in the package (each schedule of set fines forms a single application) Reference each by-law included in the package, including an indication as to whether or not it has been amended Set out what the municipality is asking for (for instance, whether they are seeking fines for the first time or increasing fines already in place) If you are seeking to increase fines for some of the offences listed on the set fine schedule, indicate which items are affected Itemise the documents enclosed in the package Provide a mailing address, a fax number, a phone number and, an email address.
What to Include in the Application Package A certified copy of each relevant bylaw must be included in the application One copy of the by-law (That means one certified copy and one copy in total) Where a Municipal Code is in effect, only the chapters relevant to the application need be enclosed Where set fines arise out of a bylaw which has been amended, a certified copy of the amending by-law as well as a certified copy of the original bylaw All bylaws must be certified by the clerk as a true copy and the certification itself must be original (therefore, a faxed copy is inadequate) Where a municipality is seeking to have existing fines increased or new offences added to an existing set fine schedule, the relevant bylaw/code chapters/amending bylaw must still be provided
What to Include in the Application Package Two copies of the set fine schedule must be enclosed: a copy with all the set fines (and early voluntary payment, where applicable) amounts listed; and, a second copy with the set fine (and early voluntary payments) amounts left out If a copy of the set fine schedule is already attached to the by-law, a separate copy of the schedule must be included in the package Set fine schedules do not have to be certified
What to Include in the Application Package Written Reasons Where the municipality is requesting set fines greater than $500, it is suggested that written reasons should be provided as to why higher fines are being sought for those particular offences. This is for the benefit of the Regional Senior Justice, who will consider them when deciding whether or not to lower the fines
What to Include in the Application Package Where the municipality is seeking to add offences to an existing set fine schedule or increasing fines from those previously ordered, you need to enclose a copy of the judge s order with the approved set fine schedule attached
The Heading to the Schedule The heading to the set fine schedule should read: Municipality/Township/Town/City of (Collingwood) Part I/ Part II Provincial Offences Act Bylaw no. XX-YY: Parking Building Code Act
The Heading to the Schedule Set Fine Schedule Page 1 of 1 Town of Collingwood Part 1 Provincial Offences Act Building Code Act, 1992, S.O. 1992, c.23
The Heading to the Schedule If the bylaw is amended, then it should read: Municipality/Township/Town/City of (Collingwood) Part I/ Part II Provincial Offences Act Bylaw no. XX-YY, as amended by bylaw GG-HH: Parking
Schedule All offences listed on the set fine schedule should be numbered chronologically Where the set fine schedule has more than one page, those pages should be numbered as page 1 of, etc.
Schedule Short Form Wording The wording used to describe the subject offence should be concise and accurate It should reflect the wording used in the offence creating provision The Short Form Wording must impose a duty or prohibition against a person or group of persons. If the Short Form Wording is too vauge (for instance: fail to comply with the provisions of this bylaw ), a set fine will not be approved Each item listed on the schedule should only reference one offence Where a section of the by-law has subsections, each offence created by each subsection should be listed separately on the set fine schedule
Schedule Offence Creating Provisions There can only be one section of the bylaw listed as the offence creating provision for each item Under the BCA, sections to be used include 8(1), 12(2), 13(1) etc.
Schedule Set Fines The maximum set fine available is $1000.00 With respect to Part I set fines, the amount listed on the set fine schedule will be considered as the fine. Court costs and VFS are added to the total payable section Only a single amount may be requested for each offence
Schedule Penalty Provisions At the bottom of both Part I and II set fine schedules, reference must be made to the general penalty provision within the bylaw. For instance, "NOTE: the general penalty provision for the offences listed above is section of the Bylaw, a certified copy of which has been filed"
Schedule Penalty Provisions For the BCA, reference must be made to the general penalty provision within the Act. For instance, Note: the general penalty provision for the offences listed above is section 36, of the Building Code Act, 1992, S.O. 1992, c.23.
Schedule Penalty Provisions If the by-law was amended, the citation should read: "NOTE: the general penalty provision for the offences listed above is section of the Bylaw, as amended a certified copy of which has been filed"
Bylaw Matters Penalty Provision The penalty provision for the offences indicated above is section 61 of the Provincial Offences Act, R.S.O. 1990, c. P. 33".
Consolidated set fine schedules Where the municipality is seeking to add new offences to an existing set fine schedule, a consolidated set fine schedule, featuring all the previously approved Short Form Wordings as well as the new Wordings, should be provided
Set Fine Schedule Page 1 of 1 Town of Collingwood Part 1 Provincial Offences Act Building Code Act, 1992, S.O. 1992, c.23 ITEM COLUMN 1 COLUMN 2 COLUMN 3 Short Form Wording Provision creating or defining offence Set Fine 1 Building without a permit Section 8.-(1) $350.00 2 Not complying with an order to comply Section 12.-(2) $350.00 3 Not complying with an order not to cover Section 13.-(1) $350.00 4 Not complying with an order to uncover Section 13.-(6) $350.00 5 Obstructing an inspector Section 19.-(1) $350.00 6 Obstructing the visibility of or removing an order Section 20. $350.00 Note: The general penalty provision for the offences listed above is Section 36, of the Building Code Act, 1992, S.O. 1992, c.23.